U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine

[nlyric]

I agree that "I honestly don't know, except to say this is clearly unsettled and a real issue. It should, and very well could have been settled with the Huffines/Dutton amendment. I find the argument that it didn't have support dubious considering it passed both houses. " (nlyric)

IMHO, police wanted to intentionally leave a "gray" area of sorts where things are not explicitly stated in regards to what they can and cannot do but rather rely on peoples ignorance and or unwillingness to "beat the wrap but not the ride" when attempting to stand up for their rights, effectively leaving it up to police discretion to threaten and intimidate so they can discourage any lawful practice. Who wants to get arrested then have to fight in court and rely on some other precedence that may or may not be interpreted as it should?

Just like "in a manner calculated to alarm", omitted or vaguely defined wording leaves both some LEO's and NON-LEO's with an open or false interpretation of what is allowed and not allowed.

I have already heard false interpretation of what the police can do on the radio in interviews with some local CLEO's. No mention of 4th Amendment, Constitution, case precedence, law suits or court rulings. From radio talk show guy, just that the lack of the amendments in question means the police can do what they want and from CLEO's, not correcting the talk show host but just saying they are looking at ways to handle this (meaning they know better, just looking for a loophole, other than articulable reasonable suspicion). Spin, propaganda and confusion are already being promoted.

LEO's who decline to respect the constitution and law/case precedence are not deserving of the badge.

Any confusion among LEOs could be cleared up quickly by an opinion from the state attorney general, Ken Paxton. Maybe we should all email him the [pre-paid legal]'s video along with arguments posted here for a legal opinion from his office.

How to Request an Attorney General Opinion
https://www.texasattorneygeneral.gov/op ... al-opinion" onclick="window.open(this.href);return false;

The law doesn't go into affect until Jan 1 specifically because law enforcement wanted the time to instruct/train their officers. If there's confusion about what they can or cannot do with regards to someone OCing the AG should clear it up early on.

You have to contact one of the following and ask them to request an AG opinion. List of who can request an AG opinion.
the governor
the head of a department of state government
the head or board of a penal institution
the head or board of an eleemosynary institution
the head of a state board
a regent or trustee of a state educational institution
a committee of a house of the Texas Legislature
a county auditor authorized by law
the chairman of the governing board of a river authority
a district or county attorney

[Bolton Strid]

Playing the MDA/devil's advocate I'm going to throw these out. What if you refuse to give your CHL because you clearly are simply siting on a bench having a cup of coffee, minding your own business and reading this forum? Can you be arrested and charged if you refuse claiming the 4th? If an LEO believes the mere sight of an OC justifies probable cause that you could be committing a Class A violation under 46.02, can he draw is weapon on you until you present him with your CHL?

I'd say you'd win the Disorderly Conduct consolation prize - the catch-all, be-all charge when nothing else fits, which bedeviled OCers in Utah and Wisconsin until their respective legislatures redefined it in the last few recent years.

[SA_Steve]

And D.conduct is a serious problem, stays with you forever, if it sticks. Meaning big lawyer money ahead if you get arrested.

[Tracker]

Playing the MDA/devil's advocate I'm going to throw these out. What if you refuse to give your CHL because you clearly are simply siting on a bench having a cup of coffee, minding your own business and reading this forum? Can you be arrested and charged if you refuse claiming the 4th? If an LEO believes the mere sight of an OC justifies probable cause that you could be committing a Class A violation under 46.02, can he draw is weapon on you until you present him with your CHL?

I'd say you'd win the Disorderly Conduct consolation prize - the catch-all, be-all charge when nothing else fits, which bedeviled OCers in Utah and Wisconsin until their respective legislatures redefined it in the last few recent years.

I tried to find out how this turned out but couldn't find anything to date except that Holcomb testified in Beaumont court on May 20, 2015
http://www.theblaze.com/stories/2013/09 ... e-illegal/" onclick="window.open(this.href);return false;

[big454]

Regarding identifying to a police officer. We would only need to present our chl licence when required to I.D to a police officer which would be only when lawfully detained , NO? Or would the fact that your are a chl holder with a handgun make it that Texas penal code 38.02 does not apply to you? I am asking because I truly do not know.

[Tracker]

Regarding identifying to a police officer. We would only need to present our chl licence when required to I.D to a police officer which would be only when lawfully detained , NO? Or would the fact that your are a chl holder with a handgun make it that Texas penal code 38.02 does not apply to you? I am asking because I truly do not know.

According to [Pre-paid legal service] they feel an officer can legally detain you simply because you are open carrying. There's good arguments on this thread to the contrary. Time will tell whether any police force pushes the ID requirement. If an officer asks me if I have a CHL I'll simply show it to him. But it could get annoying to be in a city and the police department is asking every time they see anyone OCing that/those departments are going to buy a Dutton-type amendment in the next legislature.

[Ruark]

It's my understanding that if, for some reason, an LEO asks for your ID (e.g. a traffic stop), you're required to show your CHL only if you're carrying.

[cb1000rider]

It's my understanding that if, for some reason, an LEO asks for your ID (e.g. a traffic stop), you're required to show your CHL only if you're carrying.

An officer can you ask you for anything at any time. It's going to be up to you to determine if he's demanding ID or simply asking for ID.
Personally, until this gets sorted out in some courtroom - which is where it's inevitably going - I'm going to provide the ID if I ran into that circumstance. The [pre-paid legal] perspective is useful and actually a bit surprising to me, although I don't agree with it, it's enlightening to see a basis for requiring ID and obviously something that I don't want to pay the legal fees associating with being the test case.

[nitrogen]

Anyone remember how cities like Houston used to arrest peple without a CHL who had a gun in their car, despite the law saying it was legal?

Cops will use any wiggle room to arrest people for doing things they dont like. It took several revisions of the law to finally put a stop to it.

[cb1000rider]

I don't remember that, but I suspect that it wasn't all law enforcement... Used sparingly and appropriately, it's perhaps a valuable tool. Overused, it's going to court. I believe that's how I'd think about it if I was a LEO.

[Charles L. Cotton]

I don't remember that, but I suspect that it wasn't all law enforcement...

You're right, it wasn't! It was former Harris County DA Chuck "I had to resign in disgrace" Rosenthal that "instructed" all Harris County LEO's to ask silly questions and make arrests. A female HPD Lt. appeared in a TV interview stating that HPD would follow his instructions. I'm not at all sure that many did and I know that most LEO's in Harris County ignored his ill-advised and unprofessional attempt to give orders to law enforcement personnel and agencies.

Chas.

Edited to add the following post. This was after a bill passed in 2005 and before the Motorist Protection Act (HB1815) passed in 2007. Unfortunately, the links are no longer good.

Here's another one. This one is more explicit concerning HPD following Rosenthal's lead.

Chas.

Aug. 30, 2005, 1:35AM
DA opposed to new handgun law
Pistol-toting drivers without a permit will still be prosecuted, Rosenthal warns

By CLAY ROBISON
Copyright 2005 Houston Chronicle Austin Bureau

AUSTIN - Motorists arrested for carrying pistols in their cars without a concealed handgun license will continue to be prosecuted in Houston, despite a new law that purports to give them a legal defense, Harris County District Attorney Chuck Rosenthal said Monday.
Although the sponsor said the law should reduce the number of arrests for unlawful handgun possession, Rosenthal said it won't change enforcement practices in Houston after it goes into effect on Thursday.

"It is still going to be against the law for (unlicensed) persons to carry handguns in autos," the district attorney said, adding that the new legal defense can still be challenged by prosecutors.

The new law, enacted during the regular legislative session last spring, seeks to clarify a longtime law that allowed Texans to carry handguns while traveling, a qualification that was subject to a number of inconsistent court interpretations over the years.

The new statute says a person is "presumed to be traveling" if he or she is in a private vehicle, is not engaged in criminal activity (except for a minor traffic offense), is not prohibited by any other law from possessing a firearm and is not a member of a criminal street gang.

It also requires the handgun to be concealed in the car, although weapons can be discovered by officers during routine traffic stops if a driver gives permission for a car to be searched or opens a glove compartment where a gun is secured to retrieve an insurance card or other documentation.

"The intent of the law is to keep innocent people from going to jail," said the sponsor, Rep. Terry Keel, R-Austin, a former prosecutor and former Travis County sheriff who now is a candidate for the Texas Court of Criminal Appeals.

The law, House Bill 823, was supported by the National Rifle Association and the American Civil Liberties Union and opposed by various law-enforcement groups.

More than 237,000 Texans have concealed handgun licenses. But many other law-abiding adults don't have licenses because they are disqualified by exceptions that have nothing to do with public safety, said Alice Tripp, a lobbyist for the Texas State Rifle Association, an NRA affiliate.

Tripp said people who have defaulted on student loans, who owe the state sales tax or franchise tax payments or are behind in child support payments are ineligible to receive a license.

Keel said he hoped the law will prompt police officers to think twice about arresting motorists who meet the new legal presumption and spare them the expense and "indignity" of arrest and prosecution.

Otherwise, he said, "They basically are going to arrest innocent people and make them prove their innocence."

Rosenthal and Rob Kepple, executive director of the Texas District and County Attorneys Association, disagreed.

Rosenthal said the new presumption about "traveling" doesn't define what constitutes traveling and can be challenged in court by prosecutors, leaving it to juries to decide verdicts "based upon the facts of the case."

A prosecutor could summon witnesses to successfully argue that a defendant wasn't traveling because he was simply "driving around the corner for a carton of milk," Kepple said.

"I really don't think (the law) should affect how police officers respond in arresting somebody," he [Rosenthal] added.

Houston Police Department spokeswoman Johanna Abad indicated Houston police were going to take their advice from Rosenthal's office.

Unlawful possession of a weapon is a class A misdemeanor punishable by as much as one year in county jail and a $4,000 fine. Rosenthal said most cases are resolved through plea bargains.

The prosecutor said he asked Gov. Rick Perry to veto the bill because "taking weapons off the street is a pretty good deal." He said his office handled about 5,000 weapons cases of varying degrees of severity last year.

Tripp called Rosenthal's opposition a case of "sour grapes ... and a threat to the general public."

clay.robison@chron.com

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